Standing Up to Power: The Price of Whistleblowing & Conscience-Following

Last year, Dawn Wooten, a nurse in Georgia called attention to gynecological abuses of women held in ICE detention. In the US, some whistleblowing is protected and even has a set of processes in place. OSHA has a whistleblower protection program with a web of statutes across industries.

Whistleblower laws left Edward Snowden unprotected, arguably due to both the sensitive nature of the disclosure or the government agency involved. James Alderson uncovered Medicare fraud having immediately lost his job upon refusing to file two sets of documents, one for the sake of overbilling government. The government won an $800 million settlement under the False Claims Act based on Anderson’s uncovering the practice at one hospital — document production revealed a nationwide scheme. Since then, many others were sparked to report on similar schemes. Whistleblowers are often accused of lying, harassed, and even go broke.

Toxic Loyalty

Whistleblowing creates a special ethical dilemma: a duty of loyalty conflicts with doing the right thing or preventing a harm. The ethical choices are difficult and then, the practical effects are a problem as a person becomes ostracized and un-hirable. In policing and the military, whistleblowing seems especially daunting to those who weigh the value of loyalty heavily and may be inclined to underestimate the potential harm caused by remaining quiet. Loyalty is generally an admirable, moral trait making whistleblowing a difficult choice.

Loyalty interferes with accountability for actions performed in bad faith, that pose a danger, or that cover up wrongdoing. Failing to report wrongdoing can implicate someone who fails to blow the whistle as they may appear like a co-conspirator in the act. The moral dilemma should center on the harm avoided or the benefit achieved and the nature of the loyalty. Some whistleblowing saves lives. For example, in the airline industry whistleblowing can range from mechanical risks to intoxicated pilots, both of which could endanger a planeload of people as well as some on the ground. (Hoover). In pharmaceutical whistleblowing, fraudulent marketing and distribution of substandard drugs may be rewarded financially. That is, the FDA wants to find Current Good Manufacturing Practice (CGMP) violations and needs insider help to do so. Because some whistleblowing is financially rewarded, whistleblowers must be able to justify their actions on the merits alone or they may face accusations of impropriety.

Competing loyalty is a better concept for whistleblowing. Loyalty to the public, to potential victims of wrongdoing, or to the entity enforcing the right thing (the government enforcing the laws against a fraudulent company) should count. Whistleblowers should recognize that they are acting in a loyal way, or as a loyal person. Moving toward broad loyalty might allow whistleblowers to limit the competition among moral goods that tugs at their conscience.

Capture & Regulators

Capture is a term for the regulator’s interest aligning with the regulated corporation or industry’s interest. For example, the FAA might have trouble enforcing a regulation against an airline if it has begun to view the airline as a partner. When regulators put the business relationship before the regulatory goals that the public expects, an ethical breach occurs. Whistleblowing within the regulatory agency can keep it true to its mission. On the macro level, prohibiting regulatory enforcement agencies from hiring industry executives could eliminate the temptation for lax enforcement of industry reducing the need for whistleblowing within regulatory agencies. Capture is exacerbated by stronger ties between agency and industry.

What Justifies Whistleblowing? 

To justify or even compel whistleblowing, there must be a harm (imminent, past, or future), a definable problem, and a predictable benefit (or ability to prevent harm). Examples of harms are fraud, endangerment, crimes, covering up illegal or immoral acts. Dawn Wooten witnessed unnecessary gynecological procedures being ordered, patients being treated physically harshly during medical examinations, and a failure to provide translators and obtain informed consent. A wishy washy notion that there is corporate or institutional wrongdoing is not a concrete problem with a known or predicted harm. To Wooten, being a whistleblower was better than remaining part of an “inhumane” system.

The subject of whistleblowing should not include something permissible but not liked (aggressive sales practices may mean the place of employment is not a good fit) or moral judgments (an anti-abortion nurse at a hospital providing an abortion would not be whistleblowing). Whistleblowing is not the tool for employee criticism of business, it is the moral tool for highlighting wrongdoing, preventing harm, and remedying harms.

Evaluate the Loyalty

Awareness of an issue that weighs on a person’s conscience is the beginning. Loyalty to someone or something can become a moral bad. Loyalty to a toxic group should not quiet a voice. Fear of the personal consequences is understandable. Whistleblower legal protections do not alleviate the personal costs. One study showed 100 percent were fired, 90 percent experienced stress and depression, 80 percent experienced “physical deterioration”, 54 percent were “harassed by peers at work”, 17 percent lost homes, 15 percent got divorced, and 10 percent attempted suicide. (Haines, Famous Cases of Whistleblowing, Brock Press 2004) When loyalty to the public or the potential victims aligns with the consequences of the whistleblowing, whistleblowing is more clearly a moral good.

Bruce Hoover, “Whistleblowing in Aviation,” Chapter 7, Ethical Issues in Aviation Elizabeth A. Hoppe, Routledge New York 2019. (arguing the importance of whistleblowing, describing the tension between loyalty and consequences of silence.)

Lars Lindblom, “Dissolving the Moral Dilemma of Whistleblowing,” Journal of Business Ethics 76 (4) (2007). (strong argument for free speech and against the idea of a duty of loyalty to a place of employment.)

New York City Bar Association, Committee Report,
“Call for Measures to Ensure Health, Human Rights and Public Health Protections for Detained Immigrant Women,” February 23, 2021 https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/medical-abuses-of-immigrant-women-at-irwin-detention

letter from Project South and Government Accountability Project, Re: Whistleblower’s Disclosures on Medical Care in ICE Detention at Irwin County Detention Center: Private Contractors’ Mismanagement is Endangering Immigrant, Worker and Public Health and Safety (Sept. 17, 2020), https://projectsouth.org/wp-content/uploads/2020/09/ICE-ICDC-Whistleblower-Disclosure-to-Congress-091720.pdf

https://whistleblower.org/in-the-news/bbc-news-ice-whistleblower-nurse-alleges-hysterectomies-on-immigrant-women-in-us/

https://www.mahanyertl.com/2018/guide-pharmaceutical-whistleblower-lawsuits/

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